TEKESTE v. Michele A. Brown, Law Guardian, Appellant. (2007)

Petitioner father commenced this proceeding alleging that respondent mother had moved to Iowa with the children, without notice to petitioner, and seeking to enforce the judgment of divorce pursuant to which respondent was awarded sole custody of the children, with weekly visitation to petitioner.   Following a hearing, wherein respondent was represented by counsel but did not personally appear, Family Court ordered respondent to return to Erie County with the children by a date certain.   We conclude that the court erred in further ordering that respondent's failure to comply would result in a transfer of custody to petitioner.   Petitioner did not seek a change of custody (cf. Matter of Tyrone W. v. Dawn M.P., 27 A.D.3d 1147, 811 N.Y.S.2d 255, lv. denied 7 N.Y.3d 705, 819 N.Y.S.2d 872, 853 N.E.2d 243), and there was no evidence presented at the hearing on the issue whether an award of custody to petitioner is in the best interests of the children (see Labanowski v. Labanowski, 4 A.D.3d 690, 695, 772 N.Y.S.2d 734;  cf. Matter of Heintz v. Heintz, 28 A.D.3d 1154, 1155, 813 N.Y.S.2d 591).   Although the unilateral removal of the children from the jurisdiction is a factor for the court's consideration (see generally Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94, 447 N.Y.S.2d 893, 432 N.E.2d 765), “an award of custody must be based on the best interests of the children and not a desire to punish a recalcitrant parent” (Verity v. Verity, 107 A.D.2d 1082, 1084, 486 N.Y.S.2d 505, affd. 65 N.Y.2d 1002, 494 N.Y.S.2d 96, 484 N.E.2d 125;  see Labanowski, 4 A.D.3d at 695, 772 N.Y.S.2d 734;  see also Heintz, 28 A.D.3d at 1155, 813 N.Y.S.2d 591).   We therefore modify the order accordingly.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the provision transferring custody of the children to petitioner in the event respondent fails to return to Erie County with the children by a date certain and as modified the order is affirmed without costs.

MEMORANDUM: